December 27, 2022
Probate and Florida Homestead Property
What is Homestead?
Florida homestead law is referred to as a “legal chameleon” and even many probate attorneys in Florida have trouble understanding it. There is a unique procedure for probating the homestead property (i.e., the primary residence) of a Florida resident upon their death. Under Section 733.607 of the Florida Statutes, protected Florida homestead property is not considered a probate asset, so why does it usually require a probate proceeding?
First, we must define what homestead is. under Article X, Section 4(a) of the Florida Constitution, homestead is real property, of no more than 160 contiguous acres outside a municipality, or no more than one-half of an acre of contiguous land in a municipality, owned by a natural person, and the improvements on it. In addition, to qualify for homestead it must be the decedent’s primary or permanent residence prior to death and the property must be owned by a natural person.
Note: Non-resident aliens cannot claim homestead status as they cannot legally form the intention to make the real property his or her permanent residence.
Why Probate Homestead?
For your heirs to prove these criteria have been met a Determination of Homestead proceeding is required to be brought in Circuit Court, typically in the probate division, in the County where the decedent resided. Here are three important reasons to have Florida Homestead validated:
- Protection from Creditors:
Upon the decedent’s passing, homestead is exempt from creditor claims and this protection passes to the decedent’s heirs at law. This means the decedent’s creditors cannot force the sale of the protected Florida homestead or collect any outstanding debts against the homestead. However, in order for this protection to occur the court must enter a Determination of Homestead ensuring the validity and existence that all qualifying criteria have been met. If the property is devised to persons who are not heirs of the decedent the nonexempt or “unprotected” homestead may be used to fulfill any outstanding debts of the decedent.
There are a few exceptions when a creditor can defeat the Florida homestead protection: 1) taxes and assessments specified under Article X, Section 4(a) of the Florida Constitution; 2) encumbrances voluntarily entered, such as mortgages; 3) liens that attach before the creation of homestead, for example association fees; and 4) liens for work performed on the property.
- Protect Interest of Spouse or Minor Child:
Another reason to have the property determined homestead is to protect the interest of a spouse or minor child. Florida homestead property is not devisable when the decedent is survived by a spouse or minor child. However, property that is not homestead is devisable, therefore in order to protect the rights of a spouse or minor child the interested party needs to have the property determined Florida homestead. For more information on devising the decedent’s homestead when survived by a spouse or minor child read our article Florida Homestead: Three Traps for the Unwary.
- Clear Title:
Often a Determination of Homestead is required to clear title to the property. If the heirs decide to sell the homestead property, we find that title underwriters will not issue title insurance without a Determination of Homestead. Of course, this varies depending on the specific title underwriter, but it is becoming common practice. The reason is to have a clear chain of title and a document validating who are the rightful owners.
Although Florida homestead is not considered a probate asset, it is advisable, and often a requirement, to file a Petition to Determine Homestead in the probate proceeding for three critical reasons: (1) Ensure that the property is protected from creditor claims; (2) Protect the interest of a spouse or minor child; and (3) Ensure clear title.